State v. Johnson

[Cite as State v. Johnson, 2014-Ohio-4750.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-13-45
v.
JOHNNY F. JOHNSON, JR., OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR2012 0414
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
Date of Decision: October 27, 2014
APPEARANCES:
F. Stephen Chamberlain for Appellant
Terri L. Kohlrieser for Appellee
Case No. 1-13-45
PRESTON, J.
{¶1} Defendant-appellant, Johnny F. Johnson, Jr. (“Johnson”), appeals the
judgment entry of sentence of the Allen County Court of Common Pleas. He
argues that the trial court erred by denying his motion to suppress the victim’s
pretrial identification of him, that his convictions were not supported by sufficient
evidence and were against the manifest weight of the evidence, that counsel for
plaintiff-appellee, the State of Ohio (“State”), engaged in prosecutorial misconduct
during closing argument, and that the trial court erred by failing to merge for
purposes of sentencing his convictions for kidnapping and attempted rape. For the
reasons that follow, we affirm in part and reverse in part.
{¶2} On January 17, 2013, the Allen County Grand Jury indicted Johnson
on Count One of attempted rape in violation of R.C. 2907.02(A)(2) and 2923.02, a
second-degree felony, and on Count Two of kidnapping in violation of R.C.
2905.01(B)(2), a first-degree felony. (Doc. No. 3). The indictment stemmed from
a November 28, 2012 incident in which Johnson allegedly attacked the victim,
M.F., and attempted to force her to perform fellatio on him under the porch of an
abandoned apartment building adjacent to an alley in Lima, Ohio. (See July 1-3,
2013 Tr., Vol. Two, at 220-222). Approximately an hour after the alleged
incident, M.F. identified Johnson as the person who attempted to force her to
perform fellatio. (See id. at 227-229).
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{¶3} The trial court held an arraignment hearing on January 25, 2013. (See
Doc. Nos. 6, 70). Johnson entered pleas of not guilty. (Doc. No. 70).
{¶4} On March 1, 2013, Johnson filed a motion to suppress M.F.’s pretrial
identification of him, arguing that the one-person “show-up” used to identify him
was inherently suggestive. (Doc. No. 18). Johnson requested a hearing on his
motion. (Id.).
{¶5} On March 18, 2013, the trial court held a hearing on Johnson’s motion
to suppress. (Mar. 18, 2013 Tr. at 1).
{¶6} The trial court issued a judgment entry on March 19, 2013, denying
Johnson’s motion to suppress. (Doc. No. 29). The next day, the trial court issued
an amended judgment entry “to correct typos.” (Doc. No. 30).
{¶7} On July 1, 2, and 3, 2013, a jury trial was held on the indictment.
(July 1-3, 2013 Tr., Vol. One, at 2); (Doc. No. 70). The jury found Johnson guilty
of both counts in the indictment. (July 1-3, 2013 Tr., Vol. Four, at 643-646);
(Doc. Nos. 67, 68). The trial court filed its judgment entry accepting the verdicts
on July 3, 2013. (Doc. Nos. 67, 68).
{¶8} The trial court held a sentencing hearing on August 19, 2013. (Aug.
19, 2013 Tr. at 1). At the beginning of the sentencing hearing, the trial court heard
argument concerning whether the offenses of which the jury found Johnson
guilty—attempted rape and kidnapping—merged under R.C. 2941.25. (Id. at 1-9).
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The trial court concluded that the offenses did not merge and sentenced Johnson to
8 years imprisonment on Count One and 11 years imprisonment on Count Two, to
be served consecutively for an aggregate prison term of 19 years. (Id. at 9, 22-23);
(Doc. No. 77). The trial court filed its judgment entry of sentence the next day.
(Doc. No. 77).
{¶9} On September 16, 2013, Johnson filed a notice of appeal. (Doc. No.
80). He raises four assignments of error for our review.
Assignment of Error No. I
That the trial court committed error by overruling the
defendant’s motion to suppress the pre trial identification of the
defendant by a single person show up identification.
{¶10} In his first assignment of error, Johnson argues that the trial court
erred by concluding that M.F.’s show-up identification of Johnson was “reliable
and admissible notwithstanding the suggestive nature of the ‘show-up.’” (Doc.
No. 30). Johnson argues that the trial court “failed to properly consider and weigh
the factors and the totality of the circumstances of this case.” (Appellant’s Brief at
11). He also argues that it was error for the trial court to believe M.F.’s testimony
despite “the suggestive nature of having a lone black male in the back of a marked
police car shown to a recent attack victim in a post traumatic state.” (Id. at 13).
We disagree.
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{¶11} A review of the denial of a motion to suppress involves mixed
questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-
5372, ¶ 8. At a suppression hearing, the trial court assumes the role of trier of fact
and, as such, is in the best position to evaluate the evidence and the credibility of
witnesses. Id. See also State v. Carter, 72 Ohio St.3d 545, 552 (1995).
{¶12} When reviewing a ruling on a motion to suppress, “an appellate court
must accept the trial court’s findings of fact if they are supported by competent,
credible evidence.” Burnside at ¶ 8, citing State v. Fanning, 1 Ohio St.3d 19(1982). With respect to the trial court’s conclusions of law, however, our standard
of review is de novo, and we must independently determine whether the facts
satisfy the applicable legal standard. Id., citing State v. McNamara, 124 Ohio
App.3d 706 (4th Dist.1997).
{¶13} A trial court will suppress a pretrial identification only if it is both
unnecessarily suggestive and unreliable given the totality of the circumstances.
State v. Frazier, 3d Dist. Shelby Nos. 17-11-06 and 17-11-07, 2013-Ohio-142, ¶
54, citing State v. Manley, 3d Dist. Allen No. 1-11-04, 2011-Ohio-5082, ¶ 5. “The
burden of proving that the identification procedure was suggestive and unreliable
rests on the defendant.” Manley at ¶ 5, citing State v. Taylor, 3d Dist. Allen No. 1-
03-20, 2003-Ohio-7115, ¶ 32.
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{¶14} “[A] one-person ‘show-up’ identification is inherently suggestive.”
State v. Ealy, 10th Dist. Franklin No. 11AP-750, 2012-Ohio-3336, ¶ 8, citing State
v. Gonzalez, 10th Dist. Franklin No. 10AP-628, 2011-Ohio-1193, ¶ 9. The
Supreme Court of the United States has stated that suggestive identifications are
problematic because they increase the likelihood of misidentification. Neil v.
Biggers, 409 U.S. 188, 198, 93 S.Ct. 375 (1972). However, the admission of
evidence of a show-up identification, without more, does not violate due process.
Id.{¶15} “Even if the original identification procedure was suggestive, the
actual identification is still admissible as long as it is reliable.” Manley at ¶ 5,
citing Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243 (1977) and State v.
Moody, 55 Ohio St.2d 64 (1978). We must therefore determine whether the show-
up identification was reliable based on the totality of the circumstances. Frazier at
¶ 54, citing Biggers at 199. In Biggers, the Court listed five factors that a court
must consider when evaluating the likelihood of misidentification:
(1) the witness’s opportunity to view the offender at the time of the
crime, (2) the witness’s degree of attention at the time of the crime,
(3) the accuracy of the witness’s prior description of the offender,
(4) the witness’s level of uncertainty when identifying the suspect at
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the confrontation, and (5) the length of time that elapsed between the
crime and the confrontation.
Manley at ¶ 5, quoting State v. Monford, 190 Ohio App.3d 35, 2010-Ohio-4732, ¶
39 (10th Dist.), citing Biggers at 199-200. See also Frazier at ¶ 54.
{¶16} In its entry denying Johnson’s motion to suppress, the trial court
relied on many facts, all of which were supported by competent, credible evidence
presented at the suppression hearing. (See Doc. No. 30). Two witnesses—M.F.
and Officer Amy Glanemann (“Glanemann”) of the Lima Police Department—
testified at the suppression hearing. M.F. testified that while she was walking
home from school on November 28, 2012 between 5:00 and 5:30 p.m., she was
approached by a male who came within an arm’s length in front of her and asked
if he could walk with her. (Mar. 18, 2013 Tr. at 22, 35-36, 41). According to
M.F., she declined the male’s request, and he said, “Why not do it? Do I look
old?” (Id. at 23). They walked together for about a block and a half, and M.F.
was able to get a look at the male. (Id.). M.F. entered a business, The Meeting
Place, because she did not want to walk with him. (Id.).
{¶17} M.F. testified that after between 10 to 20 minutes, she left The
Meeting Place and resumed her walk home, at which point she saw the same male
whose face she recognized. (Id. at 24). She attempted to ignore him, but he
spotted her and ran toward her saying, “Honey, wait up,” and, “Why are you
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ignoring me?” (Id. at 24-25). The male asked M.F. to go to McDonald’s with
him, and M.F. initially refused, but when he persisted, she agreed and planned to
call the police there. (Id. at 25).
{¶18} M.F. testified that the male suggested they take a shortcut to
McDonald’s through an alley. (Id. at 25-26). When M.F. told him she did not like
alleys, he looked back at her and said, “I wish I knew what someone had done to
you to make you like this.” (Id. at 26). According to M.F., she “let down [her]
guard” and agreed to walk down the alley. (Id.). M.F. testified that after they
walked a couple paces into the alley, the male suggested they take a perpendicular
alley to get to the street. (Id. at 26-27). According to M.F., the male turned into
the perpendicular alley after her, so he was behind her, and she heard him make
“like a tripping sound,” at which point she turned around to see what happened,
and he grabbed her arm and started hitting her. (Id. at 27).
{¶19} M.F. testified that after the attack ended, she ran across the street into
the Rite Aid Pharmacy (“Rite Aid”), and the clerk there called the police. (Id.).
According to M.F., from the time she first encountered the male to the time he
attacked her, about 20 minutes to a half an hour passed. (Id.). M.F. testified that
when she first encountered the male, “it was fairly light out,” and she could see
that the sun was getting close to the horizon. (Id. at 27-28). According to M.F.,
during the encounter, she “had a full look at his face,” and “several times during
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the conversation he turned his face towards [hers].” (Id. at 28). When the police
arrived at Rite Aid, M.F. gave them a description of the man’s face, approximate
weight, and clothing. (Id.).
{¶20} M.F.’s father took her to the emergency room at St. Rita’s Medical
Center (“St. Rita’s”). (Id. at 29). While there, an officer informed M.F.’s father
that the police “had somebody that they wanted [her] to I.D.,” and M.F.’s father
informed M.F. (Id.). M.F. went out to the “archway lit for the ambulances” and
saw two police cars and three officers. (Id. at 29-30). According to M.F., the area
was “well lit.” (Id. at 30). The police did not speak to M.F. until she got outside.
(Id. at 29). One of the officers shined a light into one of the cruisers containing a
man so M.F. could see the man’s face. (Id. at 30). M.F. recognized the man as the
one who attacked her “as soon as the light was on his face,” and she was “very
sure” it was him because she recognized his face, and specifically his facial
proportions and facial hair. (Id. at 30-31, 33). She told one of the officers that she
“was a hundred and ten percent sure that that was the bastard.” (Id. at 30). That
officer asked M.F. “three times if [she] was sure that it was him.” (Id. at 33).
M.F. testified that between 10 to 20 minutes elapsed between when she ran into
the Rite Aid and when the officers showed her the man in the cruiser. (Id. at 34).
{¶21} Glanemann testified that on November 28, 2012 at approximately
5:30 p.m., she and another officer were notified of a possible sexual assault that
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occurred near the Rite Aid on Market Street. (Id. at 3-5, 9). According to
Glanemann, the dispatcher described the suspect as a black male with a goatee,
approximately five feet, seven inches tall, about 300 pounds, wearing dark
clothing. (Id. at 4, 9, 18). Glanemann testified that they located Johnson, who
matched the description of the suspect, a few blocks from the Rite Aid, and they
took him to St. Rita’s “so he could be I.D.’d by the victim.” (Id. at 5-6, 19-21).
According to Glanemann, in the area where the officers were searching, no one
else matched the description of the suspect, and she could not recall seeing anyone
else in the area. (Id. at 19).
{¶22} According to Glanemann, the officers pulled the cruiser underneath
the overhang of the emergency room at St. Rita’s. (Id. at 13). M.F. identified
Johnson as the person who attacked her, and she told Glanemann that she “was a
hundred and ten percent sure it was him.” (Id. at 7). Glanemann testified that
when M.F. identified Johnson, she was five to ten feet from the cruiser, and she
looked at Johnson “for a couple seconds.” (Id. at 14-15). Johnson was in the back
seat of the cruiser, and the window, which was not tinted, was cracked. (Id. at 14).
It was dark out, but the lights of the emergency room overhang were on. (Id. at
10, 15). Johnson was not handcuffed, and only Johnson and three uniformed
officers were present. (Id. at 8, 17). Glanemann had no contact with M.F. prior to
her identifying Johnson. (Id. at 7-9). Glanemann testified that approximately 20
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to 25 minutes elapsed from the time of the assault to the time M.F. identified
Johnson. (Id. at 19). Glanemann identified Johnson for the record at the
suppression hearing. (Id. at 6).
{¶23} We agree with the trial court that M.F. identified Johnson in an
inherently suggestive show-up identification. (Doc. No. 30). However, in light of
all of the facts on which the trial court relied in denying Johnson’s motion to
suppress, we conclude that M.F.’s identification of Johnson was reliable based on
the totality of the circumstances and therefore admissible. Applying the first
Biggers factor, M.F. had multiple opportunities to view Johnson. He first
presented himself directly in front of M.F., only about an arm’s length away.
During M.F.’s 20 to 30-minute encounter with Johnson, Johnson turned his face
toward hers “several times.” The sun was approaching the horizon, and it was
“fairly light out.”
{¶24} Second, M.F.’s degree of attention before and during the crime was
substantial. M.F. testified in great detail concerning the respective routes that she
and Johnson took. She described the streets she was on and the directions she and
Johnson were facing at specific times.
{¶25} Third, M.F.’s description of Johnson to the police was accurate.
Johnson is a black male with a goatee and approximately five feet, seven inches
tall and approximately 300 pounds. When the officers located him, he was
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wearing dark clothing, just as M.F. described. In Glanemann’s words, Johnson
“absolutely” fit the description M.F. gave the police. (Mar. 18, 2013 Tr. at 20).
{¶26} Fourth, M.F. had no uncertainty when she identified Johnson outside
the emergency room at St. Rita’s. Underneath the well-lit emergency room
overhang, M.F. recognized Johnson’s face immediately when an officer shined a
light on it as he was sitting in the police cruiser. M.F. was “very sure”—or, as she
described to one of the officers, “a hundred and ten percent sure”—that Johnson
was the person who attacked her.
{¶27} Finally, about 20 to 30 minutes passed between when M.F. first
encountered Johnson to the time he attacked her, and then only about 10 to 20
minutes elapsed between when M.F. ran into the Rite Aid and when she identified
Johnson. That is a relatively short amount of time. See State v. Gonzalez, 10th
Dist. Franklin No. 10AP-628, 2011-Ohio-1193, ¶ 17-18 (describing 15 or 30
minutes as “very little time” and concluding that the trial court did not err in
denying the defendant’s motion to suppress). See also State v. Gross, 97 Ohio
St.3d 121, 2002-Ohio-5524, ¶ 23, 25 (concluding that it was not reversible error
for the trial court to admit a show-up identification that took place “several hours”
after the crime).
{¶28} For these reasons, we conclude that the trial court did not err by
denying Johnson’s motion to suppress.
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{¶29} Johnson’s first assignment of error is overruled.
{¶30} To facilitate our analysis, we will address the remainder of Johnson’s
assignments of error out of order.
Assignment of Error No. IV
That the convictions of the defendant are against the manifest
weight of the evidence and based upon insufficient evidence.
{¶31} In his fourth assignment of error, Johnson argues that his convictions
for attempted rape and kidnapping are against the manifest weight of the evidence
and supported by insufficient evidence. Johnson does not dispute that someone
kidnapped and attempted to rape M.F. Rather, Johnson argues that he was
misidentified as the perpetrator of the offenses and convicted based on “the
identification evidence of one person.” (Appellant’s Brief at 21). According to
Johnson, he was “taken in the back of a police car to a hospital and displayed as a
guilty, apprehended criminal to a 17 year old girl who had just gone through a
horrible, physical attack and when she was in a highly emotional state.” (Id.). We
disagree that Johnson’s convictions are against the manifest weight of the
evidence and based on insufficient evidence.
{¶32} “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince the average
mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio
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St.3d 259 (1981), paragraph two of the syllabus, superseded by state constitutional
amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89 (1997).
Accordingly, “[t]he relevant inquiry is whether, after viewing the evidence in a
light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime proven beyond a reasonable doubt.” Id. “In
deciding if the evidence was sufficient, we neither resolve evidentiary conflicts
nor assess the credibility of witnesses, as both are functions reserved for the trier
of fact.” State v. Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-
Ohio-4775, ¶ 33, citing State v. Williams, 197 Ohio App.3d 505, 2011-Ohio-6267,
¶ 25 (1st Dist.). See also State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-
Ohio-2380, ¶ 19 (“Sufficiency of the evidence is a test of adequacy rather than
credibility or weight of the evidence.”), citing State v. Thompkins, 78 Ohio St.3d
380, 386 (1997).
{¶33} On the other hand, in determining whether a conviction is against the
manifest weight of the evidence, a reviewing court must examine the entire record,
“‘weigh[ ] the evidence and all reasonable inferences, consider[ ] the credibility of
witnesses and determine[ ] whether in resolving conflicts in the evidence, the [trier
of fact] clearly lost its way and created such a manifest miscarriage of justice that
the conviction must be reversed and a new trial ordered.’” Thompkins at 387,
quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing
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court must, however, allow the trier of fact appropriate discretion on matters
relating to the weight of the evidence and the credibility of the witnesses. State v.
DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. When applying
the manifest-weight standard, “[o]nly in exceptional cases, where the evidence
‘weighs heavily against the conviction,’ should an appellate court overturn the trial
court’s judgment.” State v. Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶
9, quoting State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.
{¶34} Johnson was convicted of attempted rape in violation of R.C.
2907.02(A)(2) and 2923.02 and of kidnapping in violation of R.C. 2905.01(B)(2).
R.C. 2907.02 sets forth the crime of rape and provides, in relevant part: “No
person shall engage in sexual conduct with another when the offender purposely
compels the other person to submit by force or threat of force.” R.C.
2907.02(A)(2). R.C. 2923.02, the attempt statute, provides: “No person,
purposely or knowingly, and when purpose or knowledge is sufficient culpability
for the commission of an offense, shall engage in conduct that, if successful,
would constitute or result in the offense.” R.C. 2923.02(A).
{¶35} R.C. 2905.01 sets forth the crime of kidnapping and provides, in
relevant part:
(B) No person, by force, threat, or deception, shall knowingly do
any of the following, under circumstances that create a substantial
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risk of serious physical harm to the victim or, in the case of a minor
victim, under circumstances that either create a substantial risk of
serious physical harm to the victim or cause physical harm to the
victim:
***
(2) Restrain another of the other person’s liberty.
R.C. 2905.01(B)(2).
{¶36} As we mentioned above, Johnson disputes only the issue of identity.
Therefore, we will address only the identity element of the attempted-rape and
kidnapping offenses. See State v. Carter, 2d Dist. Montgomery No. 25447, 2013-
Ohio-3754, ¶ 9-12 (addressing only the element of identity because the appellant
did not contest the other elements of the offenses). “It is well settled that in order
to support a conviction, the evidence must establish beyond a reasonable doubt the
identity of the defendant as the person who actually committed the crime at issue.”
State v. Johnson, 7th Dist. Jefferson No. 13 JE 5, 2014-Ohio-1226, ¶ 27, citing
State v. Collins, 8th Dist. Cuyahoga No. 98350, 2013-Ohio-488, ¶ 19 and State v.
Lawwill, 12th Dist. Butler No. CA2007-01-014, 2008-Ohio-3592, ¶ 11. “[D]irect
or circumstantial evidence is sufficient to establish the identity of the accused as
the person who committed the crime.” Collins at ¶ 19, citing Lawwill at ¶ 11.
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{¶37} At trial, M.F. testified that on November 28, 2012, she was 17 years
old and in the eleventh grade at Lima Senior High School. (July 1-3, 2013 Tr.,
Vol. Two, at 208). She commenced her walk home from school “a little bit” after
4:30 p.m. that day. (Id.). As she was walking, a male approached her, came
within “half an arm’s distance” of her, and began talking to her. (Id. at 209).
According to M.F., she noticed that the male was black, had a goatee, “was maybe
three or four inches taller than [her], so about five-eight/five-nine,” husky, “but
not like obese,” and wearing dark pants and a black jacket. (Id. at 210). M.F.
testified that despite her telling the male, “No,” when he asked if he could walk
with her, he continued to walk “a little in front” of her, and they continued to have
a conversation, for about a block and a half or two blocks. (Id. at 209-212, 278).
As they walked, M.F. kept the male in her “line of sight at all times” so she could
“keep an eye on him.” (Id. at 212). According to M.F., the male asked her how
old she was and if she attended Lima Senior, and he said that he just moved from
Chicago and attended Lima Senior, too. (Id. at 210).
{¶38} M.F. testified that she made an excuse to get away from the male,
telling him that she was going into The Meeting Place, a business, to see her
boyfriend who worked there. (Id. at 212). After spending 10 to 20 minutes in The
Meeting Place, M.F. left and continued her walk home. (Id. at 214-215). M.F.
testified that she saw the same male that approached her earlier and that she
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“walked straight past him” as if she did not see him. (Id. at 215). According to
M.F., the male spotted her and, jogging toward her, attempted to get her attention
by calling her “honey” and “baby,” which made her uncomfortable and concerned
for her safety. (Id. at 213, 216-217).
{¶39} M.F. testified that the male said he just wanted to be friends and
asked if she would go with him to McDonald’s. (Id. at 217). She agreed and
intended to call the police there. (Id.). According to M.F., she wanted to walk
along the street to McDonald’s, and when the male suggested they take an alley,
she said she did not want to walk through the alley. (Id. at 218). M.F. testified
that the male then said, “Damn, what did somebody do to make you like this?”
(Id. at 218-219). She agreed to go down the alley because it was open on one side,
and when they came to an intersecting alley, the male suggested they take it back
out to the street and walk along it rather than the alley so she would be more
comfortable. (Id. at 219).
{¶40} M.F. testified that she agreed, and when they turned into that
intersecting alley, the male grabbed M.F.’s arm, started hitting her with his fists,
and told her that she was going to “suck his dick.” (Id. at 220-221). According to
M.F., he then moved her from the alley to under a porch of an abandoned
apartment building abutting the alley and told her that if she screamed, he would
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kill her. (Id.). M.F. could not recall how the male moved her from the alley to
under the porch. (Id. at 221).
{¶41} M.F. testified that under the porch, she was on her knees with the
male behind her, and when she attempted to grab onto a wire fence to pull herself
up, he told her to sit back down, or else he would kill her with a nearby brick. (Id.
at 220-221). According to M.F., she sat back down on her heels, and then he
turned her around, and she saw that his pants and underwear were down and his
penis exposed to her. (Id. at 221). According to M.F., the male told her “to suck it
and that it would only take five minutes.” (Id.). M.F. testified that she spun
around, covered her head, and started screaming loudly. (Id. at 222). According
to M.F., when she started screaming, the male started hitting her head, shoulders,
and arms, and when she would not stop screaming, “he said, ‘Shit,’ and he started
running away” in the direction from which they came, pulling his pants up . (Id.).
{¶42} M.F. testified that she ran to the nearby Rite Aid, and the employees
called 911. (Id. at 223-224). When the police arrived, M.F. gave them a
description of the man who attacked her. (Id. at 224-225). M.F.’s father arrived at
the Rite Aid and then took M.F. to the emergency room at St. Rita’s. (Id. at 225).
Once there, M.F.’s father told her that the police informed him “that they had
somebody for [M.F.] to I.D.” (Id. at 226).
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{¶43} An officer escorted M.F. and her father to the overhang outside the
emergency room “where the ambulances pull up” and told M.F. that the officers
“had somebody that they wanted [her] to I.D.” (Id. at 226-228). M.F. testified
that one of the officers shined a light on the face of the man, who was in the back
of a police cruiser under the well-lit overhang. (Id. at 227-229). When M.F.
started her walk home from school, it was light out, but by this time, it was dark
outside. (Id. at 227). M.F. testified that she got a “good look” at the man in the
police cruiser and had no doubt that he was the man who attacked her. (Id. at 227-
229). According to M.F., she told one officer that she “was a hundred and ten
percent sure that that was the bastard.” (Id. at 227).
{¶44} M.F. testified that she was upset and crying at Rite Aid, but by the
time she identified the man, she “was starting to calm down” but “still at the end
of [her] rope.” (Id. at 229). M.F. testified that there was no chance that being at
the end of her rope “played a factor in to [her] thinking that that was the guy.”
(Id.). M.F. also testified that when she started walking home from school, she had
her eyeglasses on, but at the emergency room, she realized she no longer had them
on. (Id. at 226, 228). Even without her eyeglasses on, she was able to “get a good
look” at the man. (Id. at 228). During her testimony, M.F. again identified
Johnson as the man who attacked her, and she had no doubts about who attacked
her. (Id. at 231, 248).
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{¶45} M.F. also used different-colored markers on State’s Exhibit 42, an
aerial view of downtown Lima, to demonstrate her and Johnson’s whereabouts
before, during, and after the attack. (Id. at 232-236). M.F. identified several
photographs, State’s Exhibits 1 through 25, including photographs of the location
where she was attacked and of her injuries. (Id. at 236-246). She identified
State’s Exhibit 27 as her coat and State’s Exhibit 26 as her eyeglasses, which were
damaged and fell off of her face during the attack. (Id. at 246-247).
{¶46} On cross-examination, M.F. testified that the man who attacked her
looked her in the face when he first approached her and asked her if he could walk
with her. (Id. at 253). She testified that when the man asked her to go to
McDonald’s with him after she stopped at The Meeting Place and resumed her
walk home, the man was facing her. (Id. at 261). According to M.F., he was
walking sideways and backwards and a “little bit in front of” her, and the man was
“trying to talk to [her] and look [her] in the face.” (Id.). M.F. testified that when
her attacker fled and turned the corner in the direction from which they came, she
lost sight of him and did not know where he went. (Id. at 262). According to
M.F., she could not remember how many times her attacker struck her, but she
knew it was multiple blows and that almost every closed-fist blow was to her face
or head, or her arms and wrists, which she used to cover her head. (Id. at 264).
M.F. testified that she and her father were at St. Rita’s for “five/ten minutes”
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before the police arrived for the identification. (Id. at 265). The police arrived
“really quickly” after she and her father. (Id.).
{¶47} On re-direct examination, M.F. testified that the CT scan performed
on her at St. Rita’s revealed no trauma in her brain as a result of the attack. (Id. at
275-276). M.F. testified that she was approximately two to three feet from the
police cruiser outside the emergency room when she identified Johnson as her
attacker. (Id. at 276-277). According to M.F., she felt no pressure from the
officers or her father to identify the person in the police cruiser as her attacker.
(Id. at 277). M.F. testified that from when she first encountered her attacker to the
time her attacker fled, she was able to see his face completely, what he was
wearing, and about how tall he was. (Id. at 279). She again said that she had no
doubt that Johnson was the person who attacked her. (Id. at 281).
{¶48} During re-cross examination, M.F. testified that at the time she
identified Johnson sitting in the police cruiser outside the emergency room, she
was closer to the police cruiser than the “ten/twelve feet” to which Johnson’s
counsel said she testified in cross-examination.1 (Id. at 281-282). M.F. believed
that counsel for Johnson asked her in cross-examination “how far [she] had to
travel” to make the identification. (Id. at 281).
1
The distance to which M.F. testified during cross-examination is unclear from the record because neither
Johnson’s counsel nor M.F. spoke in terms of units of measure, just distances between themselves and
objects in the courtroom. (See July 1-3, 2013 Tr., Vol. Two, at 267).
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{¶49} Patrolman Aaron Rode (“Rode”) of the Lima Police Department
testified that on November 28, 2012 at 5:24 p.m., he responded to the Rite Aid for
an assault report and observed M.F. there. (Id. at 286-287). Rode testified that
M.F. described her attacker to him as “a black male, in his twenties, approximately
five feet eight tall, heavy set, he had a goatee, and she said he had a very deep
voice.” (Id. at 289). M.F. also told Rode that her attacker “was wearing a black
shirt or jacket and dark colored pants,” Rode testified. (Id.). About 14 or 15
minutes after Rode arrived at Rite Aid, he broadcasted the description of M.F.’s
attacker over the radio. (Id.).
{¶50} About 12 or 13 minutes after he radioed the description, Rode heard
over the radio that Glanemann and Patrolman Boss (“Boss”) were “out on a
possible suspect,” so Rode went to their location, which was approximately three
blocks from where M.F. was attacked. (Id. at 290-291); (State’s Ex. 42). Rode
testified that the suspect appeared to match M.F.’s description of her attacker.
(July 1-3, 2013 Tr., Vol. Two, at 291). According to Rode, the suspect “was
approximately five eight. He was a black male and appeared to be in his twenties.
He was heavy-set. He had a goatee. * * * [H]e had a [deep] voice. He was
wearing a black jacket and dark colored pants.” (Id. at 291-292). Rode testified
that the suspect identified himself as “Johnny Johnson” and said he was staying at
the Lima Rescue Mission and on his way to McDonald’s for dinner. (Id. at 292).
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{¶51} Rode testified that he and the other officers took Johnson to St.
Rita’s, and he informed M.F.’s father “that when [M.F.] was feeling comfortable
and ready to come out [the officers] might have to have her try and identify a
possible suspect.” (Id. at 292-293). According to Rode, M.F. was “very, very
positive” that Johnson was the man who attacked her, and the officers asked M.F.
“several times” to make sure that she was certain of her identification. (Id. at
293). Rode testified that M.F. was “two to three feet away” from the patrol car
containing Johnson when M.F. identified him as her attacker. (Id. at 294). Rode
testified that the officers then arrested Johnson, and the time was approximately
6:05 p.m. (Id.). Rode identified Johnson in the courtroom as the person M.F.
identified as her attacker. (Id. at 295-296).
{¶52} On cross-examination, Rode testified that he recalled at least one of
the officers shining a flashlight on Johnson’s face outside the St. Rita’s emergency
room at the time M.F. identified Johnson. (Id. at 300). Rode testified that no
other suspects were brought to St. Rita’s for M.F. to identify. (Id.).
{¶53} Glanemann testified that she and Boss were responding to Rode’s
radio call that he was handling a sexual assault of a juvenile when they spotted
Johnson, who matched the description of the suspect radioed by Rode. (Id. at
306). According to Glanemann, “about ten, ten/fifteen minutes” went by between
the time Rode radioed the suspect’s description and the time she and Boss
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encountered Johnson. (Id. at 312). Glanemann testified that when she and Boss
stopped Johnson, he showed her identification identifying him as Johnny Johnson
and told her that he was coming from “the mission” and headed to McDonald’s.
(Id. at 307). Johnson asked why he was being stopped, and Glanemann informed
him that there was an assault of a juvenile in the area and that he matched the
description of the suspect. (Id. at 307). Glanemann testified that Johnson “said
that it wasn’t him.” (Id.). Rode arrived at the scene and transported Johnson to
the hospital for possible identification by M.F. (Id. at 307-308).
{¶54} According to Glanemann, when M.F. exited the hospital, M.F. got
within five feet of the cruiser containing Johnson, and Glanemann shined her
flashlight on Johnson’s face. (Id. at 309). Glanemann testified that the emergency
room overhang under which the cruiser was parked was “lit up” as well. (Id.).
According to Glanemann, when M.F. saw Johnson, she identified him as her
attacker, and when Glanemann “asked her if she was a hundred percent sure on it,”
M.F. said “that she was a hundred and ten percent sure it was him.” (Id.).
Glanemann testified that after M.F. identified Johnson, the officers arrested
Johnson and took him to the Allen County Sheriff’s Office, where Boss swabbed
Johnson’s hands for DNA. (Id. at 309-310). Glanemann identified Johnson
during trial as the person she stopped and as the person M.F. identified as her
attacker. (Id. at 313-314).
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{¶55} On cross-examination, Glanemann testified that she could not recall
whether the dome light of the cruiser containing Johnson was on at the time M.F.
identified Johnson. (Id. at 320). She also testified that when she shined the light
on Johnson’s face, she “stepped back a little bit” from the cruiser and shined her
flashlight through the cruiser window. (Id. at 321).
{¶56} On re-cross examination, Glanemann testified that she could not
remember any glare caused by her shining her flashlight onto the cruiser window.
(Id. at 325). Rather, Glanemann responded affirmatively when asked if she could
see Johnson’s “face lit up very well,” and she testified that she had “[n]o doubts”
that M.F. could also see Johnson’s illuminated face. (Id.).
{¶57} Detective Scott Leland (“Leland”) of the Lima Police Department
testified that he was assigned to investigate the assault of M.F. (Id. at 326-327).
He testified that on November 29, 2012—the day following the attack—he
showed M.F. a photograph of Johnson that Leland took because he wanted M.F. to
see Johnson’s photograph “with a clear head and make sure that was the guy and
that she didn’t know him and that she didn’t confuse him with somebody else.”
(Id. at 330, 369-370). Leland testified that when he “ran a criminal history” on
Johnson, he found that Johnson “was from the Chicago area in Illinois and that he
had an extensive record in that area.” (Id. at 341). Leland identified State’s
Exhibits 35 and 36 as photographs he took on November 29, 2012 of the back of
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Johnson’s left hand, which was bruised above the middle-finger knuckle. (Id. at
345-346).
{¶58} On cross-examination, Leland testified that he ascertained from his
conversation with Johnson that Johnson was from Chicago. (Id. at 354). Leland
identified Defendant’s Exhibits A and B as photographs of the back of Johnson’s
right hand taken at the police department. (Id. at 356-359). Leland admitted that
although he learned in his November 29, 2012 interview with Johnson that
Johnson had a cell phone at the time he was taken into custody, Leland did not
attempt to secure the cell phone until the week following that interview. (Id. at
353-354, 374-375). By that time, Johnson’s cell phone had been released to his
family and friends, per his request. (Id. at 353-354).
{¶59} Emily Miller (“Miller”) of the Ohio Bureau of Criminal Investigation
and Identification (“BCI”) testified that she received: Johnson’s shoes, jacket, and
pants; M.F.’s jacket; swabs of Johnson’s hands; hair fibers found on Johnson’s
jacket; and DNA reference standards from M.F. and Johnson.2 (July 1-3, 2013
Tr., Vol. Three, at 389). Miller testified that she did not notice blood on the swabs
of Johnson’s hands when she physically examined them, so she prepared the
swabs for DNA testing without testing them for blood. (Id. at 389-390). She
tested a couple of spots on Johnson’s shoes for blood, but those tests were
2
The parties stipulated to the chain of custody of the items tested for DNA evidence. (July 1-3, 2013 Tr.,
Vol. Two, at 382-384).
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negative. (Id. at 390). Miller tested a stain on the right cuff of Johnson’s jacket,
which tested positive for blood, and Miller prepared the test swab for DNA
testing. (Id. at 390-395).
{¶60} Miller’s tests of spots on M.F.’s jacket were positive for blood, but
she did not submit those test swabs for DNA testing because M.F. “most likely,
was the only bleeder.” (Id. at 396). Miller also “did a blind swab” of the left
shoulder area of M.F.’s jacket, though she did not notice anything unusual there,
and prepared it for DNA testing because the synopsis of the alleged incident given
to Miller indicated that M.F. “was pulled by her left shoulder.” (Id. at 396-400).
Miller’s tests of a couple stains on Johnson’s pants were negative for blood, so she
did not prepare those swabs for DNA testing. (Id. at 400). Miller prepared M.F.’s
and Johnson’s DNA reference standards for inclusion with the other items to be
tested for DNA. (Id. at 401). Miller did not test the hair fibers found on Johnson’s
jacket. (Id.)
{¶61} Miller admitted on re-cross examination that her analysis did not
indicate when the blood was deposited on Johnson’s jacket, how old the blood
was, or to whom the blood belonged. (Id. at 413).
{¶62} Emily Feldenkris (“Feldenkris”) of BCI testified that she tested the
swab prepared by Miller from the right cuff of Johnson’s jacket and that the DNA
profile developed from that swab was a mixture consistent with contributions from
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Johnson and M.F. (Id. at 441-442). According to Feldenkris, M.F. cannot be
excluded as a contributor to the DNA from the swab of the stain on Johnson’s
jacket’s right cuff. (Id. at 442). She testified that based on the national database
provided by the Federal Bureau of Investigation, the proportion of the population
that cannot be excluded as possible contributors to the mixture of DNA found on
Johnson’s jacket is one in 3,529,000 unrelated individuals. (Id.). Feldenkris
testified that she could not say for sure that it was M.F.’s DNA that was on
Johnson’s jacket; however, she could say that M.F.’s DNA profile is consistent as
being a contributor to the mixture of DNA. (Id. at 442-443).
{¶63} Feldenkris testified that she also tested the swabs of Johnson’s hands,
which resulted in DNA profiles that were mixtures consistent with contributions
from Johnson and at least one unknown individual. (Id. at 436-438). Feldenkris
excluded M.F. as a contributor to those DNA mixtures. (Id. at 438). Feldenkris
testified that she tested the swab of M.F.’s jacket, which revealed a DNA profile
that was a mixture, with the major DNA profile being consistent with M.F. and the
partial, minor DNA profile coming from at least two individuals, one of whom
was male. (Id. at 438-439). According to Feldenkris, these results were not
surprising given that M.F.’s coat was a man’s coat that M.F. purchased from a
thrift store. (Id. at 440-441).
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{¶64} Feldenkris testified that in her work, she compares a DNA profile
from a known DNA reference standard to a DNA profile from an item of evidence
“to either include or exclude an individual as being a contributor to that DNA.”
(Id. at 430). In doing so, she generates “a statistic to determine how common or
rare a profile is.” (Id. at 443).
{¶65} On cross-examination, when Johnson’s counsel asked whether
Feldenkris could, within a reasonable degree of scientific certainty, testify that
M.F.’s DNA was on Johnson’s jacket, Feldenkris responded, “I can’t say that it’s
one hundred percent this DNA comes from [M.F.]. That’s why I generate a
statistic.” (Id. at 467). When asked again, Feldenkris responded, “I can’t say for
certain that it is from [M.F.].” (Id. at 468).
{¶66} On re-direct examination, Feldenkris testified that she could say
within a reasonable degree of scientific certainty that M.F.’s DNA is consistent
with the DNA found on Johnson’s jacket. (Id. at 469).
{¶67} After the trial court admitted the State’s exhibits into evidence and
the State rested, Johnson moved for acquittal under Crim.R. 29, and the trial court
denied his motion. (Id. at 483-484).
{¶68} Johnson’s first witness was Julie Heinig (“Heinig”), assistant
laboratory director at DNA Diagnostics in Fairfield, Ohio. (Id. at 485-486).
Heinig testified that DNA Diagnostics tested the same stained area of the right
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cuff of Johnson’s jacket that BCI tested, but DNA Diagnostics did not test the
same sample as BCI. (Id. at 493, 495-496). According to Heinig, the DNA profile
from the tested stain on Johnson’s coat was a mixture consisting of three or more
individuals, and M.F. could not be excluded from that mixture. (Id. at 501, 513).
Reading from her forensic report, Heinig testified that “[t]he probability of
selecting an unrelated individual at random from the population having
contributed to the mixed DNA profile obtained * * * from the stain on the right
cuff of [Johnson’s] coat * * * is approximately one in [230,000] individuals.” (Id.
at 501). Heinig testified that this was more probable than BCI’s probability of one
in 3,529,000 unrelated individuals. (Id. at 501-502).
{¶69} Heinig testified that the respective proportions of the population that
BCI and DNA Diagnostics determined cannot be excluded as possible contributors
to the mixture of DNA found on Johnson’s jacket—one in 3,529,000 and one in
230,000 unrelated individuals—do not indicate within a reasonable degree of
scientific certainty that M.F.’s DNA was on Johnson’s jacket. (Id. at 511-512,
515). According to Heinig, if the proportion is less than one in the number of
individuals on the earth—approximately seven billion individuals—then she
cannot say within a reasonable degree of scientific certainty that the individual is
the contributor of the DNA. (Id. at 512). Heinig explained the differences in the
data collected and analyzed by BCI and DNA Diagnostics, and she noted that BCI
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and DNA Diagnostics did not “get the same DNA profile” from Johnson’s jacket.
(Id. at 502-511).
{¶70} On re-cross examination, Heinig responded negatively when asked if
she could “say with any degree of reasonable scientific certainty that * * *
Johnson’s DNA is on his coat.” (Id. at 535).
{¶71} Johnson was the final witness. He testified that his hometown is
Chicago, Illinois and that he moved to Lima in the middle of August 2012 at the
prompting of his girlfriend, who lived in Lima with her parents. (July 1-3, 2013
Tr., Vol. Four, at 547, 549). According to Johnson, on November 28, 2012, he
took the bus to the Lima Mall in the morning and “stayed there mostly the whole
day,” until “five something.” (Id. at 550-551). Johnson testified that he took the
bus back to the Lima Rescue Mission where he was residing “close to five o’clock
probably,” stayed there “for about a good twenty minutes and smoked a cigarette,”
then departed for McDonald’s. (Id. at 551). Johnson was residing at the Rescue
Mission because his girlfriend’s parents wished that he no longer live with them
and their daughter, Johnson’s girlfriend. (Id. at 548).
{¶72} Johnson testified that on the evening of November 28, 2012, he was
wearing black khakis, black dress shoes, a hoodie, and a jacket. (Id. at 552-553).
He testified that as he was walking to McDonald’s, he was stopped by police
officers who told him that a young lady was assaulted and that he matched the
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description of the suspect. (Id. at 554-555). According to Johnson, he “told them
it wasn’t [him],” but the officers looked at his identification and took him to St.
Rita’s. (Id. at 555).
{¶73} Johnson testified that at St. Rita’s, the officers parked “where the
ambulances come in.” (Id.). According to Johnson, M.F. came out of the
entrance, stood “like ten feet from [him] in the car,” and, as the officers “put a
flashlight to the window,” responded, “Yes,” when the officers asked her if
Johnson was the person who attacked her. (Id. at 555-556). The officers then
arrested Johnson. (Id. at 556-557). According to Johnson, he had never seen M.F.
before she identified him at St. Rita’s. (Id. at 556, 561). Johnson testified that he
was interviewed by Leland the next morning and told him that he “was texting
[his] girl the whole time.” (Id. at 557). He testified that he was texting with his
girlfriend on his cell phone “[l]ike, the whole day” and “[l]ike, every three
minutes.” (Id. at 557-558).
{¶74} Johnson identified State’s Exhibit 35 and Defendant’s Exhibit A as
photographs of his left hand, which he said reflect a scar “on the top part” of his
hand that has “been there for a long time.” (Id. at 558-559). He showed his hands
to the jury, along with a “bright pink/red” birthmark on his left eyebrow. (Id. at
559-560). Johnson’s counsel showed him photographs of M.F. from November 28
and 29, 2012. (Id. at 561). Johnson responded, “No, absolutely not,” when
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Johnson’s counsel asked him, “[P]oint blank, did you do that to that young lady?”
(Id.). Johnson testified that he was nowhere near the alley and abandoned
apartment building where M.F. was assaulted. (Id. at 562).
{¶75} On cross-examination, Johnson acknowledged that he is from
Chicago and that he is “[a]round five foot eight.” (Id. at 562). He testified that on
November 28, 2012, he was in Lima, had a goatee, and was wearing a black coat
and black pants. (Id. at 562-563). Johnson also acknowledged that he gave
Leland permission to look at his cell phone and that he signed a slip authorizing
his girlfriend to take his cell phone. (Id. at 565). After first responding, “Yea,”
when asked if he recalled telling Leland that he was at the Lima Mall, Johnson
said he could not recall telling Leland if he was at the Lima Mall or not. (Id. at
566). Johnson did not remember telling Leland that he was outside the Rescue
Mission “from five to six-thirty.” (Id. at 565). Johnson did not recall Leland
telling Johnson during the interview that he saw a bruise on Johnson’s hand, nor
did Johnson recall telling Leland in response that he slept on his hands the
preceding night. (Id. at 573-574).
{¶76} After Johnson testified and the trial court admitted Johnson’s
exhibits, the defense rested, and Johnson renewed his Crim.R. 29 motion for
acquittal, which the trial court denied. (Id. at 576). Counsel gave their closing
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arguments, and the trial court charged the jury. (Id. at 584-641). The jury found
Johnson guilty of Counts One and Two. (Id. at 643).
{¶77} We first review the sufficiency of the evidence supporting the
identity elements of Johnson’s attempted-rape and kidnapping offenses. See State
v. Velez, 3d Dist. Putnam No. 12-13-10, 2014-Ohio-1788, ¶ 68. In her testimony,
M.F. described the multiple opportunities she had to observe her attacker before
and during the attack. When M.F. first encountered her attacker on her walk
home, he came within “half an arm’s distance” of her, and M.F. continued to keep
him in her line of sight during their walk together. M.F. gave Rode a specific
description of her attacker, and within minutes of the attack, officers located
Johnson, who matched M.F.’s description, approximately three blocks from the
site of the incident. M.F. identified Johnson as her attacker outside of the
emergency room within an hour of the attack. During trial, M.F. once again
identified Johnson as her attacker.
{¶78} M.F.’s attacker told her during their walk together that he recently
moved to Lima from Chicago, and Johnson told Leland that he was from Chicago.
The State’s expert witness concerning forensic DNA analysis testified that M.F.
could not be excluded from the DNA mixture found on Johnson’s jacket. She
testified that the proportion of the population that cannot be excluded as possible
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contributors to the DNA mixture found on Johnson’s jacket is one in 3,529,000
unrelated individuals.
{¶79} Viewing this evidence in a light most favorable to the prosecution,
we conclude that a rational trier of fact could have found the identity element of
the attempted-rape and kidnapping offenses proven beyond a reasonable doubt.
{¶80} Having concluded that sufficient evidence supports Johnson’s
convictions, we next address his argument that his convictions were against the
manifest weight of the evidence. Because Johnson disputes only the issue of
identity, we will again address only the identity elements of the offenses. We
summarized in our discussion of the sufficiency of the evidence above the
identity-related evidence weighing in favor of Johnson’s convictions. Johnson
argues that when M.F. identified Johnson outside of the emergency room, she
“had just gone through a horrible, physical attack” and was “in a highly emotional
state.” (Appellant’s Brief at 21). He argues that aside from the suggestive show-
up identification, “[t]here was no other corroborating evidence presented in this
case * * *.” (Id.).
{¶81} While M.F. testified that she was “at the end of [her] rope” and not
wearing her eyeglasses when she identified Johnson outside the emergency room,
she likewise testified that she got within two to three feet of the cruiser containing
Johnson under the well-lit overhang, got a “good look” at Johnson’s face as an
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Case No. 1-13-45
officer shined a light on it, and had no doubts that Johnson was her attacker.
Rode’s and Glanemann’s accounts of the identification were consistent with
M.F.’s. Johnson discounts this testimony, as well as M.F.’s in-court identification
of Johnson as her attacker and Rode’s and Glanemann’s in-court identifications of
Johnson as the person who M.F. identified as her attacker.
{¶82} Johnson overlooks the detailed nature and accuracy of M.F.’s
description of her attacker. That description allowed officers to locate Johnson
within minutes. Johnson also ignores the importance of the Chicago-related
testimony. M.F. testified that her attacker told her that he had just moved to Lima
from Chicago. Leland testified that he learned after speaking with Johnson that
Johnson was from Chicago. Johnson testified that he moved to Lima from
Chicago in mid-August 2012—only three and a half months before the date M.F.
was attacked.
{¶83} Johnson argues that neither his nor the State’s expert witness
concerning forensic DNA analysis could testify within a reasonable degree of
scientific certainty that M.F.’s DNA was on Johnson’s jacket. However, Johnson
overlooks that both expert witnesses testified that they could not exclude M.F. as a
contributor to the DNA mixture found on Johnson’s jacket. In fact, Johnson’s
expert witness testified to a one in 230,000 probability of selecting an unrelated
individual at random from the population having contributed to the mixed DNA
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Case No. 1-13-45
profile found on Johnson’s jacket. The State’s expert witness testified to a one in
3,529,000 probability. While the experts’ inability to testify within a reasonable
degree of scientific certainty that M.F.’s DNA was on Johnson’s jacket “weakened
the certainty of the DNA evidence, * * * the jury remained free to assign this
evidence whatever weight it deemed proper in arriving at the verdict.” State v.
Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, ¶ 79.
{¶84} Johnson testified that he did not attack M.F. However, Johnson’s
testimony was underwhelming compared to the evidence that he was M.F.’s
attacker. Moreover, because the jury was in the best position to assess the
credibility of the witnesses, “we afford great deference to the jury’s determination
of witness credibility.” State v. V.J., 10th Dist. Franklin No. 13AP-799, 2014-
Ohio-2618, ¶ 32. For the reasons above, the evidence does not weigh heavily
against Johnson’s convictions, and we cannot conclude that the jury clearly lost its
way and created such a manifest miscarriage of justice that the convictions must
be reversed and a new trial ordered.
{¶85} Johnson’s fourth assignment of error is overruled.
Assignment of Error No. III
That the State of Ohio committed misconduct in its closing
argument thereby prohibiting the defendant from receiving a
fair trial.
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Case No. 1-13-45
{¶86} In his third assignment of error, Johnson argues that the State
committed misconduct in its rebuttal closing argument by arguing that Johnson
had “every motive to lie” in his testimony and that in order to find Johnson guilty,
the jury needed to determine that M.F. lied in her testimony. We disagree.
{¶87} The test regarding prosecutorial misconduct during closing
arguments is whether the remarks were improper and, if so, whether they
prejudicially affected the defendant’s substantial rights. State v. Davis, 116 Ohio
St.3d 404, 2008-Ohio-2, ¶ 231, citing State v. Smith, 14 Ohio St.3d 13, 14 (1984).
“In making this determination, an appellate court should consider several factors:
(1) the nature of the remarks, (2) whether an objection was made by counsel, (3)
whether corrective instructions were given by the court, and (4) the strength of the
evidence against the defendant.” State v. Braxton, 102 Ohio App.3d 28, 41 (8th
Dist.1995).
{¶88} “Misconduct of a prosecutor at trial will not be considered grounds
for reversal unless the conduct deprives the defendant of a fair trial.” Id., citing
State v. Apanovitch, 33 Ohio St.3d 19 (1987) and State v. Maurer, 15 Ohio St.3d
239 (1984). “The touchstone of the analysis ‘is the fairness of the trial, not the
culpability of the prosecutor.’” Davis at ¶ 231, quoting Smith v. Phillips, 455 U.S.
209, 219, 102 S.Ct. 940 (1982).
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{¶89} “Parties have wide latitude in their closing statements, particularly
‘latitude as to what the evidence has shown and what inferences can be drawn
from the evidence.’” State v. Wolff, 7th Dist. Mahoning No. 07 MA 166, 2009-
Ohio-7085, ¶ 13, quoting State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, ¶
213. “‘A prosecutor may comment upon the testimony and suggest the conclusion
to be drawn by it, but a prosecutor cannot express his personal belief or opinion as
to the credibility of a witness or as to the guilt of an accused, or go beyond the
evidence which is before the jury when arguing for conviction.’” State v. Manns,
5th Dist. Richland No. 08 CA 101, 2009-Ohio-3262, ¶ 20, citing State v. Smith,
12th Dist. Butler No. CA2007-05-133, 2008-Ohio-2499, ¶ 7. See also State v.
Stober, 3d Dist. Putnam No. 12-13-09, 2014-Ohio-1568, ¶ 133, citing State v.
Hand, 107 Ohio St.3d 378, 2006-Ohio-18, ¶ 16.
{¶90} For example, a prosecutor “can bolster his own witnesses, and
conclude by saying, in effect, ‘The evidence supports the conclusion that these
witnesses are telling the truth.’” State v. Draughn, 76 Ohio App.3d 664, 670 (5th
Dist.1992). See also State v. Jeffery, 2d Dist. Montgomery No. 24916, 2013-
Ohio-504, ¶ 20, citing Draughn. However, a prosecutor “cannot say, ‘I believe
these witnesses,’ because such argument invades the province of the jury, and
invites the jury to decide the case based upon the credibility and status of the
prosecutor.” Draughn at 670, citing State v. Smith, 14 Ohio St.3d 13 (1984). See
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also Jeffery at ¶ 20, citing Draughn. Similarly, a prosecutor “can say, ‘The
evidence supports the conclusion that the defendant is lying, is not telling the
truth, is scheming, has ulterior motives, including his own hide, for not telling the
truth.’” Draughn at 670, citing State v. Strobel, 51 Ohio App.3d 31 (3d
Dist.1988). The prosecutor “may not say, ‘I believe the defendant is lying,’ for the
same reasons as above.” Id.{¶91} In his closing argument, counsel for Johnson explained to the jury
that the only contested issue in the case was identity—namely, whether it was
Johnson who attacked M.F. (July 1-3, 2013 Tr., Vol. Four, at 593-594). At one
point, Johnson’s counsel suggested that the jury did not “have to think that [M.F.
is] lying” to find that the State failed to prove that Johnson attacked M.F. (Id. at
594). However, he later said, “She’s wrong. It’s not him. She says it’s him. You
heard him testify. ‘It’s not me. * * *.’” (Id. at 595-596). And still later,
Johnson’s counsel said, “[M.F.] has not lied to you. I don’t think she’s lied to
you.” (Id. at 602).
{¶92} In her rebuttal closing argument, counsel for the State addressed
Johnson’s counsel’s implication that M.F. was mistaken concerning the identity of
her attacker:
[State’s Counsel]: Folks, when you look at the reasons, the motives,
people had in testifying up here, when you look at
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all of the evidence, all of these coincidences, the
unluckiest guy in the world matched in every
single solitary description and word. Think about
all those things. Think about [M.F.] sitting on
this stand and how direct she was and, again, not
one bit of motive to come in here and lie to you.
Again, [Johnson’s counsel] wants to characterize
it as being mistaken. She’s an intelligent girl.
She’s no dummy. She didn’t succumb to some
plant in her head. She’s not the eye witness who
thinks they saw somebody in a brief moment.
She’s the eye witness that walked for several
blocks with this individual and who was actually
attacked by this individual. The one word that
you cannot for a second describe [M.F.] with is
liar. Every single solitary shred of evidence
backs up everything that she said. Everything.
The only piece of evidence that didn’t was the
self-serving statements of the defendant who has
every motive to lie.
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In order to find this defendant not guilty you have
to choose to believe that [M.F.] got on the stand
and lied to you.
[Johnson’s
Counsel]: Objection.
[Trial Court]: Overruled.
[State’s Counsel]: I told you in the beginning, and Judge is going to
tell you again, the testimony of one witness, if
believed, is proof beyond a reasonable doubt. In
this case we do have more than [M.F.]. But, at
the end of the day do you believe [M.F.]? Ask
yourselves that question, folks. When you do,
you’ll find that this defendant is, in fact, guilty
beyond a reasonable doubt of both the Attempted
Rape and Kidnapping of [M.F.]. The State of
Ohio is asking you to do just that. Thank you so
much for your consideration.
(Id. at 626-627).
{¶93} The State’s counsel’s statements during rebuttal closing argument do
not amount to prosecutorial misconduct. She never expressed a personal belief or
opinion as to the credibility of M.F. or Johnson or as to Johnson’s guilt. Rather,
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she instructed the jurors to ask themselves whether they believed M.F. The State’s
counsel permissibly argued that the evidence supported M.F.’s testimony. See
Draughn, 76 Ohio App.3d at 670. Conversely, she pointed out that the only
evidence contradicting M.F.’s testimony was Johnson’s testimony, implying that
Johnson’s testimony was unsupported by the remaining evidence. This was also
permissible. See id. Finally, it was permissible for the State’s counsel to suggest
that Johnson’s motives to lie are the reasons why Johnson’s testimony was
inconsistent with M.F.’s testimony and the other evidence. Id.
{¶94} We conclude that the State’s counsel’s remarks in this case were not
improper. They were not objectionable, and no corrective instruction was
necessary.
{¶95} Johnson’s third assignment of error is overruled.
Assignment of Error No. II
That the trial court committed error by failing to merge the
offenses of kidnapping and attempted rape in this case
pursuant to ORC 2941.25.
{¶96} In his second assignment of error, Johnson argues that the
kidnapping and attempted-rape offenses of which he was convicted were allied
offenses of similar import and that the trial court erred by not merging them for
purposes of sentencing. Specifically, Johnson argues that the actions of M.F.’s
assailant “are part of one continuous course of conduct.” (Appellant’s Brief at
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18). According to Johnson, “The physical assault and movement of the victim are
all in furtherance of and immediate to the attempt to force the victim to perform an
act or [sic] oral sex.” (Id.). We agree.
{¶97} Whether offenses are allied offenses of similar import is a question
of law that this court reviews de novo. State v. Stall, 3d Dist. Crawford No. 3-10-
12, 2011-Ohio-5733, ¶ 15, citing State v. Brown, 3d Dist. Allen No. 1-10-31,
2011-Ohio-1461, ¶ 36.
{¶98} R.C. 2941.25, Ohio’s multiple-count statute, states:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such offenses,
but the defendant may be convicted of only one.
(B) Where the defendant’s conduct constitutes two or more
offenses of dissimilar import, or where his conduct results in two or
more offenses of the same or similar kind committed separately or
with a separate animus as to each, the indictment or information may
contain counts for all such offenses, and the defendant may be
convicted of all of them.
In determining whether offenses are allied offenses of similar import under R.C.
2941.25, the court must first determine whether it is possible to commit both
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offenses with the same conduct. State v. Johnson, 128 Ohio St.3d 153, 2010-
Ohio-6314, ¶ 48. “If the multiple offenses can be committed with the same
conduct, then the court must determine whether the offenses were committed by
the same conduct, i.e., ‘a single act, committed with a single state of mind.’” Id.
at ¶ 49, quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, ¶ 50
(Lanzinger, J., dissenting).
{¶99} If it is possible to commit the offenses with the same conduct and the
defendant did, in fact, commit the multiple offenses with the same conduct, then
the offenses are allied offenses of similar import and will merge. Id. at ¶ 50.
However, “if the court determines that the commission of one offense will never
result in the commission of the other, or if the offenses are committed separately,
or if the defendant has separate animus for each, then according to R.C.
2941.25(B), the offenses will not merge.” (Emphasis sic.) Id. at ¶ 51. “‘The
defendant bears the burden to prove entitlement to merger.’” State v. Love, 3d
Dist. Marion No. 9-13-09, 2014-Ohio-437, ¶ 25, quoting State v. Forney, 2d Dist.
Champaign No. 2012-CA-36, 2013-Ohio-3458, ¶ 10.
{¶100} Here, Johnson was convicted of attempted rape and kidnapping.
The State concedes that it is possible to commit attempted rape and kidnapping
with the same conduct. (Appellee’s Brief at 14). See State v. Lindsay, 5th Dist.
Richland No. 10-CA-62, 2011-Ohio-1708, ¶ 23, citing State v. Donald, 57 Ohio
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St.2d 73 (1979), syllabus. Therefore, we will proceed to the second step of the
Johnson analysis and determine whether the offenses were committed by the same
conduct.
{¶101} In State v. Logan, the Supreme Court of Ohio provided guidance
concerning when kidnapping and another offense of the same or similar import
will merge:
In establishing whether kidnapping and another offense of the same
or similar kind are committed with a separate animus as to each
pursuant to R.C. 2941.25(B), this court adopts the following
guidelines:
(a) Where the restraint or movement of the victim is merely
incidental to a separate underlying crime, there exists no separate
animus sufficient to sustain separate convictions; however, where
the restraint is prolonged, the confinement is secretive, or the
movement is substantial so as to demonstrate a significance
independent of the other offense, there exists a separate animus as to
each offense sufficient to support separate convictions;
(b) Where the asportation or restraint of the victim subjects the
victim to a substantial increase in risk of harm separate and apart
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from that involved in the underlying crime, there exists a separate
animus as to each offense sufficient to support separate convictions.
60 Ohio St.2d 126, syllabus. See also Stall, 2011-Ohio-5733, at ¶ 20-21. The
Court in Logan added, “Secret confinement, such as in an abandoned building or
nontrafficked area, without the showing of any substantial asportation, may, in a
given instance, also signify a separate animus and support a conviction for
kidnapping apart from the commission of an underlying offense.” Logan at 135.
{¶102} In Logan, as the victim “was walking down the street she was
accosted by defendant, a casual acquaintance, at the entrance to an alley.” (Id. at
126). After the victim refused to accept some pills offered to her by the defendant,
the “defendant produced a knife, held it to her throat, and forced her into the alley.
Under such duress, she accompanied him down the alley, around a corner, and
down a flight of stairs, where he raped her at knifepoint.” Id. at 127.
“Immediately following the rape, defendant released her.” Id. The Court held that
the defendant’s “detention and asportation of the victim was incidental to the
crime of rape,” therefore demonstrating “but a single animus.” Id. at 135-136.
The Court reasoned that “the restraint and movement of the victim had no
significance apart from facilitating the rape” and that “[t]he detention was brief,
the movement was slight, and the victim was released immediately following the
commission of the rape.” Id. at 135. The Court also said that it could not “find
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that the asportation of the victim down the alley to the place of rape presented a
substantial increase in the risk of harm separate from that involved in the rape.”
Id.
{¶103} In State v. Price, during an evening of consuming beer and
swimming in a pond, the appellant asked the victim “if she wanted to engage in
sexual intercourse.” 60 Ohio St.2d 136, 137 (1979). When she refused, the
“appellant threatened to drown her if she did not take a walk with him,” but the
victim returned to the car. Id. “Shortly thereafter, appellant returned to the car,
pulled [the victim] from the back seat to an area nearby behind some bushes,
forced her to the ground, removed her pants, and raped her.” Id. In holding “that
the rape and the kidnapping * * * were neither committed separately nor with a
separate animus as to each,” the Court reasoned, “The force by which appellant
removed [the victim] from the car to behind a nearby bush to engage in sexual
conduct, as required under the rape statute, is indistinguishable from the force by
which appellant restrained [the victim] of her liberty, as required under the
kidnapping statute.” Id. at 143. “In addition, there was no act of asportation
distinct from the rape either in time or in function.” Id.
{¶104} In State v. Collins, the victim declined Collins’s invitation when he
“asked if she ‘wanted to party,’” but Collins nevertheless “proceeded to follow
[the victim] down an alley she was using to get home.” 4th Dist. Ross No.
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01CA2590, 2002-Ohio-3212, ¶ 3. “Collins came up behind her, put his hand over
her mouth, grabbed her around the waist, and threw her to the ground.” Id. “He
beat her repeatedly in the head and raped her, both vaginally and anally.” Id.“Collins ordered the victim to stay in the alley for five minutes, and he left.” Id.Despite Collins’s order, the victim left the alley “as soon as he was gone.” Id. at ¶
25. “The examining doctor testified that the victim had bruises to the right side of
her face and torso.” Id. The Fourth District Court of Appeals concluded that the
trial court erred by not merging the kidnapping and rape offenses because “a
separate animus did not exist as to each offense.” Id. at ¶ 26-27. The court
reasoned that Collins’s “restraint of his victim was merely incidental to the rape,
and that Collins did not subject the victim to a substantial increase of harm that
was separate and apart from that involved in the rape.” Id. at ¶ 26.
{¶105} In State v. Bohannon, the First District Court of Appeals held that
“the trial court erred in sentencing Bohannon for kidnapping and the other charged
offenses” because “with respect to each victim, kidnapping was an allied offense
of similar import to the other charged offenses and was not committed separately
or with a separate animus as to each offense.” 1st Dist. Hamilton Nos. C-070859
and C-070860, 2010-Ohio-4596, ¶ 17. For example, Bohannon was found guilty
of and sentenced for raping and kidnapping a victim who “testified that he had
been walking home when Bohannon approached him on the street, pointed a gun
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at him, and directed him up a driveway and behind a house, where Bohannon
raped him.” Id. at ¶ 10. The victim “testified that, from the house, he had been
able to see the street he had been walking on.” Id. Bohannon was found guilty of
and sentenced for raping and kidnapping another victim who “testified that he had
been walking home when Bohannon approached him, pointed a gun at his head,
and forced him down a driveway and down the side of a house to a storage shed
next to the house” where Bohannon raped him. Id. at ¶ 11. The victim testified
that “the shed had not been very far from the road” from which Bohannon took
him. Id.
{¶106} In State v. Hogan, as the victim was “walking home, she heard
footsteps behind her. The man approaching her from behind threatened her with a
weapon and told her ‘don’t look at my face or I [will] kill you.’” 10th Dist.
Franklin No. 09AP-1182, 2010-Ohio-3385, ¶ 17. The man grabbed the victim
from behind, “forced [her] into a wooded area,” and sexually assaulted her. Id. at
¶ 2. “Later the man told her to perform oral sex on him, which she refused to do.”
Id. at ¶ 18. The Tenth District Court of Appeals held that R.C. 2941.25 “barred
[the defendant’s] being convicted of both the sexual assaults and the kidnapping”
because the incident “was not of long duration,” “[a]ll of the restraint and removal
of [the victim] was done to expedite the sexual assault,” and the trial testimony
indicated “no other animus.” Id. at ¶ 49.
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{¶107} In this case, M.F. testified that when she and Johnson began
walking down the intersecting alley to get back out to the street on their way to
McDonald’s, Johnson grabbed her arm, started hitting her on her face with his fists
multiple times, and told her that she was “going to suck his dick.” (July 1-3, 2013
Tr., Vol. Two, at 220-221). Johnson then “move[d] [her] from the alley to under a
porch of the apartment building” that abutted the alley and threatened to kill her if
she screamed. (Id. at 220). Under the porch, M.F.’s back was to Johnson, and
when she attempted to pull herself up with the help of a wire fence, he told her to
sit back down or else he would kill her with a brick. (Id.). When Johnson turned
M.F. around, exposed his penis to her, and told her “to suck it and that it would
only take five minutes,” M.F. spun around, covered her head, and began
screaming. (Id. at 221-222). Johnson then started hitting M.F.’s head, shoulders,
and arms, and when she did not stop screaming, he fled. (Id.).
{¶108} This case bears similarities to Logan, Price, Collins, Bohannon, and
Hogan. Johnson’s movement and restraint of M.F. was merely incidental to the
attempted rape. Based on M.F.’s testimony, when Johnson first began hitting her
in the alley, he made it clear he was attempting to force M.F. to perform fellatio on
him. After he began hitting M.F., Johnson moved M.F. to an area under a porch
on the exterior of an apparently abandoned apartment building. Once underneath
the porch, Johnson threatened to kill M.F. with a brick when she attempted to pull
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herself up, exposed his penis to M.F., and ordered her to perform fellatio on her.
This sequence of events—and particularly Johnson’s stated intentions during the
attack—demonstrates that Johnson’s restraint and movement of M.F. had no
significance apart from facilitating the rape. See Logan, 60 Ohio St.2d at 135.
{¶109} Borrowing from the Supreme Court’s reasoning in Price, the force
by which Johnson moved M.F. from the alley to under the porch to attempt to
engage in sexual conduct, as required under the rape statute and attempt statute, is
indistinguishable from the force by which Johnson restrained M.F. of her liberty,
as required under the kidnapping statute. Price, 60 Ohio St.2d at 137. There was
no act of asportation distinct from the attempted rape either in time or in function.
Id.
{¶110} Johnson’s restraint of M.F. was not prolonged so as to demonstrate
a significance independent of the attempted-rape offense. It is unclear from the
record precisely how long Johnson’s attack of M.F. lasted. However, judging by
the times of various events to which M.F. and the officers testified—such as when
M.F. commenced her walk home and when Rode responded to the Rite Aid—it is
clear that the attack lasted only minutes. More importantly, it is clear from M.F.’s
testimony that Johnson restrained M.F. only as long as was necessary for him to
attempt to rape her. According to M.F., after Johnson began hitting her in the
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alley, he moved her to the area under the porch, and he fled when she would not
stop screaming after he ordered her to perform fellatio on him.
{¶111} Johnson’s confinement of M.F., while perhaps secretive or in a
relatively “nontrafficked area,” does not demonstrate a significance independent of
the attempted-rape offense. That is, the confinement was merely incidental to the
attempted rape taking place at the time of Johnson’s movement and confinement
of M.F. Moreover, the confinement in this case was no more secretive than the
confinements in Logan, Price, Collins, Bohannon, and Hogan. The area under the
porch to which Johnson moved M.F. was outdoors and faced a parking area that
was behind the abandoned apartment building and at the intersection of two alleys.
(See State’s Exs. 1, 42). In Logan, the defendant forced the victim “down the
alley, around a corner, and down a flight of stairs.” 60 Ohio St.2d at 127. In
Price, the defendant pulled the victim from the back seat of a car “to an area
nearby behind some bushes.” 60 Ohio St.2d at 137. In Collins, the defendant put
his hand over the victim’s mouth and threw her to the ground in an alley “in the
early morning hours.” 2002-Ohio-3212, at ¶ 3. In Bohannon, the defendant
directed one of his victims “up a driveway and behind a house,” and he forced
another victim “down a driveway and down the side of a house to a storage shed
next to the house.” 2010-Ohio-4596, at ¶ 10, 11. In Hogan, the defendant forced
the victim “into a wooded area.” 2010-Ohio-3385, at ¶ 2.
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{¶112} Nor was Johnson’s movement of M.F. “substantial so as to
demonstrate a significance independent of” the attempted-rape offense. Logan, 60
Ohio St.2d 126, syllabus. It is unclear from the record precisely what distance
Johnson moved M.F. However, the abandoned apartment building under whose
porch Johnson moved M.F. was nearby and abutted the alley in which Johnson
first began attacking M.F. M.F.’s markings on the aerial map introduced by the
State at trial suggest that the distance was less than half a block and less than the
length of a building on the other side of the alley from the apartment building.
(State’s Ex. 42). Therefore, it does not appear that M.F. was moved any further
than the victim in Logan, for example. See 60 Ohio St.2d at 127. And as in
Logan, Johnson was on foot when he moved M.F. See id.
{¶113} Finally, the asportation and restraint of M.F. did not subject her to
“a substantial increase in risk of harm separate and apart from that involved in the
underlying crime” of attempted rape. (Emphasis added.) Logan at syllabus. Once
again, based on M.F.’s testimony, from the moment Johnson began hitting M.F. to
the time he fled, “[a]ll of the restraint and removal of [M.F.] was done to expedite”
the attempted rape. Hogan, 2010-Ohio-3385, at ¶ 49. Therefore, the risk of harm
to which M.F. was subjected was not separate from that involved in the attempted
rape. The State argues that by restraining M.F. under the porch, Johnson subjected
her to a substantial increase in risk of harm “because she could have been beaten
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even more severely, beaten with a brick, and possibly even killed * * *.”
(Appellee’s Brief at 15). Johnson’s restraining M.F. in a relatively secluded
location did not itself substantially increase her risk of harm. Indeed, the victims
in Logan, Price, Collins, Bohannon, and Hogan were restrained in relatively
secluded locations.
{¶114} For these reasons, we hold that the kidnapping and attempted-rape
offenses of which Johnson was convicted were allied offenses of similar import.
Therefore, the trial court erred by not merging those offenses for purposes of
sentencing.
{¶115} Johnson’s second assignment of error is sustained.
{¶116} For the foregoing reasons, the judgment of the Allen County
Common Pleas Court is affirmed in part and reversed in part, and the matter is
remanded to the trial court for further proceedings consistent with our disposition
of the second assignment of error.
Judgment Affirmed in Part,
Reversed in Part and
Cause Remanded
ROGERS, J., concurs separately.
{¶117} I concur with the result reached by the majority. I write separately
because I believe the majority failed to recognize a serious misstatement by the
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prosecutor in closing argument which warranted a corrective instruction from the
trial court.
{¶118} As quoted by the majority, the prosecutor told the jury: “The one
word that you cannot for a second describe [M.F.] with is liar. * * * In order to
find this defendant not guilty you have to choose to believe that [M.F.] got on the
stand and lied to you.” Maj. Op. ¶ 92.
{¶119} To lie is “to make an untrue statement with the intent to deceive” or
“to create a false or misleading impression: convey an untruth.” Webster’s Third
New International Dictionary 1305 (2002). To say that a statement is a lie is to
characterize the person making it as a liar – one who is intentionally untruthful.
{¶120} The State cannot shift the burden of proof to the defendant. State v.
Sparks, 3d Dist. Union No. 14-01-03, 2001 WL 929374, *3 (Aug. 16, 2001). In
this case, the identity of the offender was disputed. The victim testified that the
defendant was the perpetrator. However, the victim could be wrong about her
identification of the defendant without being untruthful. She might have simply
been mistaken as to the identity, or confused because of the manner in which she
was first presented with a suspect. In fact, that was the argument of the defense.
{¶121} A jury might be willing to conclude that a victim was mistaken
about the identity of her attacker. A jury might not be satisfied that the victim
could positively identify the defendant as her attacker. But a jury might well be
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reluctant to render a verdict which implies that they are finding the victim to be a
liar. To tell the jury that they must find that she intentionally lied to them is not
correct. The defendant is not required to prove that the State’s witnesses are lying.
Indeed, the defendant is not required to prove anything – that burden is squarely
on the State. The prosecutor’s comments amounted to telling the jury that if it
doubted that the victim was lying, it would be required to find the defendant
guilty. This increases the possibility that the sympathetic victim will receive the
benefit of the doubt, when it is the defendant that is entitled to the benefit of any
reasonable doubt. Thus, the statement impermissibly shifted the burden of proof.
{¶122} Furthermore, for the prosecutor to tell the jury that to find the
defendant not guilty they would have to “choose to believe” that the victim lied to
them is the same as telling the jury that the prosecution believes her so you should
too! This is equivalent to a statement of personal belief and/or opinion as to the
credibility of the witness and is improper. See State v. Williams, 79 Ohio St.3d 1,
12 (1997).
{¶123} I believe that the trial court should have instructed the jury that this
statement by the prosecutor was an incorrect statement of the law, and that the jury
was entitled to find that M.F. was mistaken without the additional burden of
finding her to be a liar. However, improper statements by prosecutors during
closing arguments are only grounds for reversal where “it so taints the proceedings
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as to deprive the defendant of a fair trial.” State v. Manley, 3d Dist. Allen No. 1-
11-04, 2011-Ohio-5082, ¶ 14.
{¶124} Considering the totality of the evidence and arguments of counsel, I
do not find the error sufficiently prejudicial that it would warrant reversal in this
case.
SHAW, J., concurs in part and dissents in part.
{¶125} I concur with the lead opinion entirely in the analysis and
disposition of the first, third and fourth assignments of error. I do not concur with
anything in the separate concurring opinion. I respectfully dissent as to the
disposition of the second assignment of error by the majority regarding the merger
of the kidnapping and attempted rape convictions in this case.
{¶126} The victim testified that the appellant started hitting her in the alley,
told her she was going to “suck his dick” then “moved” her from the alley into the
location under the porch and told her that if she screamed he was going to kill her.
(Tr. 220). She then found herself down on the ground under the porch but was
facing away from the appellant, who she testified was “behind me and I can’t see
what he’s doing.” (Tr. 220). The victim then testified that the porch had a “wire
fence enclosing it” and that when she put her hand on the fence to “pull myself up
on my knees” that appellant then told her to “get back down or else I’ll kill you”
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and then threatened to kill her, first with a “stick” and then the appellant stated
“No I’ll kill you with this brick here.” (Tr. 220) In response, the victim stated she
then sat “back down on my heels.” (Tr. 221)
{¶127} It is notable that the threat to kill the victim with the brick was
issued prior to the initiation of any attempted sexual conduct by appellant, was not
issued in conjunction with a demand for any sexual act as in “turn around and suck
my dick or I’ll kill you with this brick” but instead was made solely to prevent her
from breaking free from her restraint as she attempted to get up on her knees. At
that point the victim was clearly being “restrained of her liberty by threat of force
under circumstances that either created a substantial risk of serious physical harm
or caused physical harm” exactly as alleged in the charge of Kidnapping set forth
in Count Two of the Indictment, and with a separate animus related solely to the
Kidnapping charge sufficient to justify the trial court’s determination of same.
{¶128} With the victim still down on her heels, the appellant then “turned”
the victim around to face him as he now stood in front of her with his pants down
and penis exposed whereupon he demanded fellatio from her (Tr. 221), thus
clearly establishing the elements of Attempted Rape exactly as charged in Count
One of the Indictment. However, in response, the victim then testified “I spin
around and I cover my head and I start screaming” thus, remaining on the ground
but again facing away from the appellant. (Tr. 221)
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{¶129} The appellant then began beating her about the face, shoulders and
arms with his fists for a period of time until the appellant eventually just said
“shit,” pulled up his pants and fled. (Tr. 222) There is no indication in the
testimony of a further threat or demand for any sexual conduct while this beating
was being administered nor is there any indication that the appellant tried to
physically grab her head or hair, turn her around again to face him or otherwise
attempted to forcibly impose fellatio upon her, which at that point was not likely
to be physically possible while he was beating her with his fists on her head and
shoulders from behind.
{¶130} Even assuming arguendo that the appellant’s initial threat to kill the
victim with a brick so close in time to his initial declaration of intent to force
sexual conduct upon her in the alley, could only be incorporated into the single
animus of the attempted rape, the beating administered to the victim by the
appellant at the end of the incident as set forth above - inflicted upon a restrained
victim down on her heels and facing away from the appellant with her head
covered - is in my view, far more reasonably construed as an independent venting
of violent frustration upon the victim after the failure of the attempted rape, rather
than as part of any continuing effort or purpose to forcibly compel or attempt a
sexual act.
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Case No. 1-13-45
{¶131} In any event, it is my view that both the foregoing threat to kill the
victim with a brick prior to the initiation of any sexual coercion and the later
physical assault upon a victim already restrained and subdued by the appellant
after a failed attempt at sexual coercion, each subjected the victim to a substantial
increase in risk of harm separate and apart from that involved in the attempted
rape, sufficient to support a finding of separate animus by the trial court under the
Logan test cited by the majority.
{¶132} In addition, I believe the instances of intermittent threats and
violence in the present case are distinguishable from a number of the cases cited
by the majority in support of merger, many of which seem to focus upon a single
and continuous threat, force or restraint used to physically accomplish and actually
perform the particular sexual act being forced upon the victim.
{¶133} For all of the foregoing reasons, I believe the record is sufficient to
support the trial court’s determination of a separate animus for Kidnapping and
Attempted Rape under the language of the specific statutory sections set forth in
Count One and Count Two of the Indictment in this case. Accordingly, I would
overrule the second assignment of error and affirm the conviction and sentence of
the trial court in its entirety.
/jlr
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